CH 4 international law and municipal law p180
l Treaty à really treaty? Executive agreement (Belmont – treated like treaty), president memo (Medellin), president executive order, è treaty-making power è self-executing
l (if treaty) whether falls within treaty-making power under US Con
1. e.g. subject matter of treaty impinge on rights reserved to states by 10th amendment, or (beyond art.1 sec.8 powers of Congress – but, given foreign affairs are vested with president, mostly dispute arise vis-à-vis 10th amendment)
2. state (like MO) may argue that the treaty is beyond treaty-making power
(1) in MO v. Holland, (S.Court), MO argued that “what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do”
1) 10th amendment : Powers reserved to states or people. ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
3. Two factors in Asakura (US S.court) : whether constitution forbids, whether proper subject
1) “the treaty-making power of US is not limited by any express provision of the constitution, and, though it does not extend “so far as to authorize what the constitution forbids,” it does extend to all proper subjects of negotiation between our government and other”
à. () – treaty making power of US is not limited by express provision of constitution esp. 10th amendment, it cannot do what constitution forbids, it extends to proper subject between states
2) In Asakura, strengthening the friendly relationship between the two nations falls within the proper subject, FCN treaty falls within treaty power
4. Two factors in MO v. Holland (US S.Court) : whether contravene any prohibitory words in Constitution, whether forbidden by invisible radiation of 10th amendment (whether forbidden by constitution explicitly or implicitly)
1) “Act of Congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the US”
2) “there may be matters … that act of congress could not deal with but that a treaty followed by such an act could…”
3) Unless contravening prohibition words in constitution, treaty is within treaty making power. Here, the treaty does not contravene …
4) Whether forbidden by invisible radiation of 10th amendment,
5) wild birds are not in the possession of anyone, only transitorily à regarding Killing and sale of migratory birds, State may regulate but its authority is not exclusive of paramount powers
5. (,) in sum, three factors, i) forbidden by constitution explicitly, ii) forbidden by constitution implicitly e.g. forbidden by invisible radiation, iii) proper subject
l Whether self-executing
1. Definition
(1) Self-executing : whenever it operates of itself, without the aid of any legislative provision (see Foster, US S.Court, p180)
(2) Non-self- : terms of treaty imports a contract (i.e. party has to perform a particular act), the treaty addresses itself to political, not judicial branch
2. Status in US domestic law
(1) Self- : US Constitution declares a treaty to be the law of the land, and, consequently, to be regarded in court as equivalent to an act of the legislature (supremacy clause art.6.2)
(2) Non-self : can only be enforced pursuant to legislation
3. Test of determining whether or not self-
(1) In Foster, (US S.Court) textual approach, “be ratified and confirmed” as opposed to “be confirmed”
(2) In Asakura, (US S.Court), look to content(subject matter) of the treaty, “The rule of equality established by the FCN treaty stands on the same footing of supremacy as do the provisions of laws of US”
(3) In Sei Fujii, (S. Court of CA), look to the intent of the (signatory) party, evidenced by text, if it unclear, look to circumstances surrounding its execution / “self-executing treaties prescribe in detail the rules governing rights and obligations of individuals”
(4) In Medellin, (US S.Court),
1) (Maj) first, textual approach, presence of language about a provision’s self-execution, second, also consider, as aids, negotiation and drafting history, and post-ratification understanding of parties
2) (in Medellin case, can’t find the language, when president and senate discuss the drafting, there was hardly provision about self-executing, not a single nation make it self-executing)
3) (dissenting) multifactor and case-by-case approach / language is not decisive / provision’s subject matter address itself political or judicial / whether it confers specific, detailed individual legal rights
(5) My suggestion : authoritative test is based on art. 31 and 32 of VCLT (treaty interpretation) as well as rest 3rd 325 / if no explicit text in treaty, look to supplementary means rather than concluding it is non-self-executing (unlike Maj in Medellin)
Foster v. Neilson, 27 U.S. 253, (S. Court), 1829, p180
Issue
1. Do these words act directly on the grants, or do they pledge the faith of US to pass acts which shall ratify and confirm them ?
The provision (stipulation)
- The eighth article stipulates “all the grants of land made before … 1818, by his Catholic majesty shall be ratified and confirmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territory had remained under the dominion of his Catholic majesty, did not give validity to grants which were invalid because land involved did not belong to Spain at time of the grant.” (adiosme – treaty interpretation VCLT art.31 ordinary meaning, Medellin,
Reasoning
1. A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished.
2. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.
(1) Adiosme – treaty works in supremacy clause only when the treaty operated of itself without aid of legislative act
3. But when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, (then) the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court
4. Here, it does not say “those grants are hereby confirmed” instead, “be ratified and confirmed” seems to be the language of contract
Asakura v. city of Seattle , (S. Court of US), 265 US 332, 1924, p183
Background
1. Japanese national sought to operate pawnshop in Seattle. Seattle ordinance prohibited operation of pawnshop by noncitizens. Suit for injunction by R. Asakura against the City of Seattle
2. Appellant (Asakura) challenged Seattle ordinance limiting his operation of a pawn business on the ground of
(1) US-Japan FCN treaty
(2) Constitution of State of Washington
(3) Due process and equal protection of 14th amendment of US constitution
The provision relevant here in ‘Friendship, navigation and commerce treaty’ (FCN treaty
‘The citizens or subjects of each of the high contracting parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established. * * * The citizens or subjects of each * * * shall receive, in the territories of the other, the most constant protection and security of their persons and property. * * *’ Article 1.
U.S.C.A. Const. Art. VI(6) cl. 2 supremacy clause
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
1. Whether the US-Japan FCN treaty is within treaty-making power of US under Constitution
(1) “the treaty-making power of US is not limited by any express provision of the constitution, and, though it does not extend “so far as to authorize what the constitution forbids,” it does extend to all proper subjects of negotiation between our government and other nations”
(2) (ad – “express provision of the constitution” means unconstitutional interference with the rights reserved to the States by the Tenth Amendment)
(3) Here, strengthening the friendly relationship between the two nations falls within the proper subject (exam, application, strengthening friendly relationship is proper subject)
(4) (ad, what if City of Seattle argued that, the FCN treaty was not what act of Congress could do (due to 10th amend), so FCN treaty is unconstitutional, like in MO v. Holland, à Seattle City may prohibit operation of pawnshop, but its authority is not exclusive power).
(5) State of Missouri v. Holland, 252 U.S. 1920
1) Issue
a. MO argued that “it is said that … what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do ”
2) US constitution 10th amendment : Powers reserved to states or people. ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
3) “Act of Congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the US”
4) “there may be matters … that act of congress could not deal with but that a treaty followed by such an act could …”
5) Here, the treaty does not contravene any prohibition words in constitution
6) Only question is whether it is forbidden by the terms of 10th amendment
7) wild birds are not in the possession of anyone, only transitorily à regarding Killing and sale of migratory birds, State may regulate but its authority is not exclusive of paramount powers (ad : so the treaty is within the authority of US)
2. whether the FCN treaty is self-executing
(1) “it operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts”
(2) The rule of equality established by the FCN treaty stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States.
(3) Thru supremacy clause, the FCN treaty stands on the same footing as Constitution and laws of the US
(4) Seattle ordinance was void in violation of the treaty (the treaty was the supreme law of the land)
3. Operating pawnshop constituted a “trade” within the meaning of the treaty
(1) “Treaties are to be construed in a broad and liberal spirit”, and when * two constructions are possible, one restrictive of rights that may be claimed under it, and the other favorable to them, the latter is to be preferred à pawnshop <>
Sei Fujii v. State of CA, 38 Cal.2d 718, (S. court of CA), 1952, p186
Background
1. The alien resident, Japanese, who was ineligible to citizenship under the naturalization laws, challenged a judgment that certain real property purchased by him had escheated to the State of CA. He contended that the Alien Land Law had been invalidated by the U.N. Charter and that it violated the Fourteenth Amendment.
2. The court held first that the U.N. Charter did not provide relief for the alien resident because it was not a self-executing treaty so as to supersede inconsistent state legislation as provided in U.S. Const. art VI. (supremacy clause) à (ad, if not self-executing, supremacy clause does not kick in)
3. However, the court determined that the Alien Land Law violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Reasoning
1. “A treaty, however, does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing”
Foster v. Neilson, 27 U.S. 253, S. Court, 1829
“ A treaty is, in its nature, a contract between two nations, not a legislative act. … Our constitution declares a treaty to be the law of the land. … It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. … But when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, (then) the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court”
2. How to determine whether self-executing <test of whether self-executing>
(1) “in determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution …
(2) … In order for a treaty provision to be self-executing, the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the court”
(3) Here, “Art. 1 of UN Charter do not purport to impose legal obligation on the individual member nations or to create rights in private persons”
(4) Example of self-executing treaty p187 à “they prescribed in detail the rules governing rights and obligations of individuals”
(5) UN Charter 104 (Un enjoy legal capacity) and 105 (UN enjoy privilege and immunity) are self-executing
State of Missouri v. Holland, 252 U.S. 416, 1920, p191
Background
1. The State of MO brought a bill in equity, which challenged the Migratory Bird Treaty Act of July 3, 1918, and the regulations made by the Secretary of Agriculture in pursuance of the same, claiming that the treaty was an unconstitutional interference with the rights reserved to the state of MO under the Tenth Amendment, which included absolute control of wild game and birds within the State's borders.
2. The Act of 1918 entitled an act to give effect to the convention between US and Great Britain prohibiting the killing, capturing or selling any of the migratory birds
àad , here Congress implemented the treaty. No issue of self-executing
àonly issue is whether the treaty is valid. If the treaty is valid, the implementation is valid, and it trump (prevail) state (MO) statute
3. Federal statute regulating migratory birds, passed before the 1916 treaty was concluded, had been struck down.
4. S. Court concluded that the power to make the treaty had been expressly delegated to the United States under U.S. Const. art. II, � 2 and art. VI. The Court noted that the treaty did not contravene any prohibitory words found in the federal constitution, nor was the subject matter, the regulation of migratory birds, forbidden by some invisible radiation from the general terms of the Tenth Amendment. Rejecting the State's claim upon title, the Court stated that the wild birds were not in the possession of anyone.
Issue
1. Whether the treaty and statute are void as an interference with the rights reserved to the States
Reasoning
1. Whether the treaty between US and G. Britain is within treaty-making power of US under Constitution
(1) Asakura v. city of Seattle , S. Court of US, 265 US 332, 1924
1) “the treaty-making power of US is not limited by any express provision of the constitution, and, though it does not extend “so far as to authorize what the constitution forbids,” it does extend to all proper subjects of negotiation between our government and other nations”
2) (ad– “express provision of the constitution” means unconstitutional interference with the rights reserved to the States by the Tenth Amendment)
3) Here, strengthening the friendly relationship between the two nations falls within the proper subject
(2) State of Missouri v. Holland, 252 U.S. 1920
1) Issue
a. MO argued that “it is said that … what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do ”
2) US constitution 10th amendment : Powers reserved to states or people. ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
3) “Act of Congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the US”
à(ad act of congress is one thing, treaty making power is another)
4) “there may be matters … that act of congress could not deal with but that a treaty followed by such an act could …”
5) Here, the treaty does not contravene any prohibition words in constitution, Only question is whether it is forbidden by invisible radiation from the terms of 10th amendment
6) wild birds are not in the possession of anyone, only transitorily à regarding Killing and sale of migratory birds, State may regulate but its authority is not exclusive of paramount powers (ad : so the treaty is within the authority of US)
Article II - The Executive Branch, Section 2 -
President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Article 1 - The Legislative Branch / Section 8 - Powers of Congress
Crosby v. National Foreign Trade Council, 530 U.S. 363, (S. Court) , 2000, p194
Background
1. Nonprofit organization representing member companies that engaged in foreign trade challenged constitutionality of the Massachusetts Burma Law, which restricted the ability of (state of) Massachusetts and its agencies to purchase goods or services from companies that did business with Burma (Myanmar).
2. The S. Court found the MA Burma Law
(1) was an obstacle to the accomplishment of Congress' objectives under the (Fed) Act, .
(2) undermined the intended purpose and natural effect of delegation of discretion to the President to control economic sanctions against Burma, the limitation of sanctions under the Act, and the directive to the President to diplomatically develop a comprehensive, multilateral strategy towards Burma.
(3) was invalid under the supremacy clause
3. The court noted representations by the executive branch and formal diplomatic protests demonstrated the Burma Law stood in the way of Congress's diplomatic objectives.
Outcome:
1. The judgment was affirmed. Under principles of conflict preemption, the state (MA) foreign trade law concerning Burma undermined the intended purpose of, and was preempted by, the federal Foreign Operations, Export Financing, and Related Programs Appropriations Act.
Reasoning
1. Congress has the power to preempt state law. (US Con Art. 6, cl. 2., supremacy clause)
(1) Adiosme – the cases in which Congress is empowered to preempt state law, i) express provision, ii) occupy a field iii) conflict with state law
2. Even without an express preemption provision, state law must yield to a congressional Act i) if Congress intends to occupy the field, or ii) to the extent of any conflict with a federal statute. (U.S.C.A. Const. Art. 6, cl. 2.)
3. (adiomse – what is the meaning of “conflict with federal statute”) Court will find preemption i) where it is impossible for a private party to comply with both state and federal law and ii) where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives; what is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. (U.S.C.A. Const. Art. 6, cl. 2.)
4. Massachusetts law restricting authority of its agencies to purchase goods or services from companies doing business with Burma (Myanmar) was invalid under the Supremacy Clause; state law undermined the intended purpose and “natural effect” of (at least three) provisions of federal Act i) delegating effective discretion to the President to control economic sanctions against Burma, ii) limiting sanctions solely to United States persons and new investment, and iii) directing the President to proceed diplomatically in developing a comprehensive, multilateral strategy towards Burma. (U.S.C.A. Const. Art. 6, cl. 2)
àad: (i)-(iii) are the intended purpose and natural effect of the federal act
(1) First, the state Act is an obstacle to the federal Act's delegation of discretion to the President to control economic sanctions against Burma. Although Congress put initial sanctions in place, it authorized the President to terminate the measures upon certifying that Burma has made progress in human rights and democracy, to impose new sanctions upon findings of repression, and, most importantly, to suspend sanctions in the interest of national security. … the (Fed) statute has given the President as much discretion to exercise economic leverage against Burma … It is implausible…that Congress would… empower the President had it been willing to compromise his effectiveness by allowing state or local ordinances to blunt the consequences of his actions. … the state Act does undermines the President's authority by leaving him with less economic and diplomatic leverage than the federal Act permit (-à the Fed law delegate comprehensive authority to president, MA law impedes exercising the discretion of President)
(2) Second, the state Act stands in clear contrast to the federal Act. It prohibits some contracts permitted by the federal Act, affects more investment than the federal Act, and reaches foreign and domestic companies while the federal Act confines its reach to United States persons. It thus conflicts with the federal law by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions (à the scope of MA law is more broad (different from) than Fed law)
(3) Finally, the state Act is at odds with the President's authority to speak for the United States among the world's nations to develop a comprehensive, multilateral Burma strategy. … This delegation of power, like that over economic sanctions, invested the President with the maximum authority of the National Government. The state Act undermines the President's capacity for effective diplomacy. … The Executive has consistently represented that the state Act has complicated its dealing with foreign sovereigns…
5. The existence of a conflict cognizable under the Supremacy Clause does not depend on express preemption clause
l **
Crosby v. National Foreign Trade Council, (US S.Court) p194
Background
- In an area of foreign affairs, federal statute preempt state law thru supremacy clause (art.6.2)
- Here, Massachusetts Burma Law, which restricted the ability of (state of) Massachusetts and its agencies to purchase goods or services from companies that did business with Burma (Myanmar) conflicts with [federal Foreign Operations, Export Financing, and Related Programs Appropriations Act] and [presidential power delegated by the federal act]
- Thus, the federal statute preempts MA law by supremacy clause
Reasoning
1. Congress has the power to preempt state law. (US Con Art. 6, cl. 2., supremacy clause)
2. Circumstances under which congressional act preempts state law
(1) an express preemption provision
(2) if Congress intends to occupy the field
(3) to the extent of any conflict with a federal statute
3. the meaning of “conflict with a federal statute”
(1) where it is impossible for a private party to comply with both state and federal law
(2) where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives
4. here, the MA state law undermined intended purpose and “natural effect” of the federal statute
(1) the Fed law delegate to president comprehensive authority to control economic sanction against Burma, MA law impedes the exercise of discretion by President
(2) the scope of MA law is more broad (different from) than Fed law: MA law regulate foreign and domestic company, Fed law regulate only US company
(3) The state Act undermines the President's capacity for effective diplomacy
5. Note p201
(1) Without the federal statute, S. Court could invalidate the MA state Law : (i) unconstitutional interference with the foreign affairs power of the Fed Gov. or (ii) violation of the dormant foreign commerce clause (art.1. sec.8 powers of Congress, cl.3)
(2) Regarding (i), “power over foreign affairs is vested exclusively in political branch of federal government” (Belmont case, US S.Court, p204)
(3) adiosme three ways in which state law is preempted by federal law in foreign affairs **
(i) Supremacy clause (art.6.2) (위의 논의는 supremacy clause 만)
(ii) Power over foreign affairs is vested exclusively in political branch of federal gov. (Belmont) (5.(1).(i))
(iii) Dormant foreign commerce clause (art.1.8.3)
Whitney v. Robertson, 124 U.S. 190, S. Court, 1888, p202 <Whitney’s last-in-time rule (rest s.115)>
Background
1. Merchants, who imported sugars from San Domingo into US, alleged that they should not have had to pay duties on their imported products because the sugars were similar to goods imported from the Hawaiian Islands, which were exempt from duties.
The court held that
1. the treaty between US and the Dominican Republic is a pledge that there shall be no discriminating legislation against the importation…; but it has no greater extent. It did not provide for special concession.
2. the Treaty was never designed to prevent (interfere with) “special concessions” which exempted the sugar imported from another foreign country (here, Hawaii) from duties for a valuable consideration .
3. (Ad– the treaty b/w US and Dominican does not provide for concession of special privilege which exempted imported sugar from duties. The treaty b/w US and Hawaii has the concession. The treaty b/w US and Dominican was not intended to interfere with the concession b/w US and Hawaii)
Reasoning
1. When a law and a treaty relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; (Charming Betsy Rule ? )
2. By the Constitution of the United States a treaty and a statute are placed on the same footing
3. but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing.
4. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government,
5. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance
The treaty b/w US and Dominican
“No higher or other duty shall be imposed on the importation into the United States of any article, the growth, produce, or manufacture of the Dominican republic, than on like articles, the growth, produce, or manufacture of any other foreign country”
(ad – Q : why the last-in-time rule kicks in? no need. Cf. “But, independently of considerations of this nature…”)
Notes 2 p207
Q : should the executive agreement benefit from Whitney’s last-in-time rule ?
1. Ad No, one of the reasoning of Whitney case is “By the Constitution of the United States a treaty and a statute are placed on the same footing” . it is unclear that Executive agreement is on same footing with (Fed) statute
Whitney rule and Charming Betsy rule HR p981
- If a treaty and a federal statute conflict, the one last in date will control the other
- An act of congress ought never to be construed to violate the law of nations if any other possible construction remains
§ 114. Interpretation Of Federal Statute In Light Of International Law Or Agreement
(Charming Betsy rule)
§ 115. Inconsistency Between International Law Or Agreement And Domestic Law: Law Of The United States (Whitney rule)
United States v. Belmont, 301 U.S. 324, (US S.Court) 1937, p204
Background
1. (maybe for fear of being confiscated during Russian Revolution of 1917,) Russian Corporation deposited money with private banker prior to 1918, and the banker died.
2. A decree of the Soviet Government dissolved a Russian corporation and expropriated all of its assets, including the deposit account with a bank in NY
3. Subsequently, US President recognized, (and established diplomatic relations with) the Soviet Government, and for the purpose of bringing about a final settlement of claims and counterclaims between the Soviet Government and US, it was agreed that the Soviet Government would take no steps to enforce claims against American nationals, but all such claims, including the deposit account, were assigned to US (with the understanding that the Soviet Government would be notified of all amounts so realized by US)
4. The assignment to the U.S. of the expropriated monies was effected by an exchange of diplomatic correspondence between the Soviet Government and the U.S. (the agreement, including assignment, was not a treaty , instead, executive agreement à literally not within supremacy clause *)
5. Petitioner US brought a suit to recover (from respondent executors (bank in NY)) money deposited with their decedent ((deposited) by a Russian corporation and assigned to US by Soviet Gov. after expropriation)
6. The district court held a judgment for the U.S. could not be had because it would put into effect an act of confiscation (by Soviet Gov.) that was contrary to the public policy of New York where the monies were deposited.
7. The S. Court held
(1) no state policy could prevail against the international compact here involved (ad i.e. no policy of whichever state <>
(2) the conduct of foreign relations was committed by the U.S. Constitution to the political departments and the propriety of exercising this political power was not subject to judicial (ad state cannot deal with foreign affairs. Judiciary cannot intervene the foreign affairs conduct by political branch)
(3) The assignment involved here was within the competence of the President (ad Cf. treaty-making power under the authority of US)
(4) the external powers of the US were to be exercised without regard to state laws or policies
(5) while the U.S. Constitution stated that private property could not be taken without just compensation, the Constitution had no extraterritorial operation, unless in respect of U.S. citizens
Reasoning
1. every sovereign state must recognize the independence of every other sovereign state; and that the courts of one will not sit in judgment upon the acts of the government of another, done within its own territory
à(adi - the act of state doctrine ? so not sit in judgment upon the act of nationalization by Soviet Gov.)
2. power over foreign affairs is vested exclusively in political branch of federal government and the propriety of the exercise of this political power was not subject to judicial decision
3. who is the sovereign of a territory is … one the determination of which by the political departments conclusively binds the courts; and that recognition by these departments is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence
àadi,, The recognition and opening diplomatic relations are exclusive power of political branch, conclusively bind the court. Once recognize, validate retroactively all the actions of the Gov. Here, US recognized Soviet Gov.
4. We take judicial notice of the fact that, coincident with the assignment, the President recognized the Soviet Government, and normal diplomatic relations were established. The effect of this was to validate all acts of the Soviet Government here involved from the commencement of its existence
5. … in respect of what was done here, the Executive had authority to speak as the sole organ of that government
6. the external powers of the United States are to be exercised without regard to state laws or policies … state constitutions, state laws, and state policies are irrelevant to the inquiry and decision .. it is inconceivable that any of them can be interposed as an obstacle to the effective operation of a federal constitutional power. Cf. Missouri v. Holland, 252 U.S. 416; Asakura v. Seattle, 265 U.S. 332, 341.
am,
- Medellin, president memo v. state law (procedural default rule), it could go with exclusive power prevailing against state law, but it did not. Why ? i) issue - … creating federal … , obviously president cannot create federal law ii) based upon non-self-executing, Belmont is not tied up with non self-executing treaty, iii) youngstown, 3rd
- Belmont, executive agreement v. state policy, Youngstown 2nd
executive agreement v. state policy, thru exclusive power over foreign affairs, recognition of government,
Three ways ( i) supremacy clause, ii) exclusive power, iii) dormant foreign commerce clause)
Crosby – supremacy clause / Belmont – exclusive power
United States v. Belmont , (US S.Court) p204
1. (regarding the argument that state (NY) policy prevails against executive agreement) power over foreign affairs is vested exclusively in political branch of federal government
(1) (Why?) external sovereignty of Great Britain passed to the United States immediately, as the result of their separation from Great Britain, and was not transmitted to the colonies severally / consequently, no federal sovereign power is dependent on an affirmative constitutional grant (Curtiss-Wright, S. Court, p208)
(2) the propriety of the exercise of this political power was not subject to judicial decision
(3) power over foreign affairs is to be exercised without regard to state laws or policies
1) state laws or policies should not be obstacle to effective operation of federal constitutional power
(4) (ad), thus, executive agreement in question, though not treaty and not literally covered by supremacy clause (art.6.2), prevails over state (NY) policy
2. Recognition of Soviet government
(1) Recognition of government and opening diplomatic relations are, exclusive power of federal political branch, and conclusively bind the court
(2) Effect of the recognition is to validate retroactively all the actions of the government
1) Here, US recognized Soviet government and opened diplomatic relationship,, Soviet gov.’s activity, including expropriation and agreement (with US), is validated retroactively
(3) Sovereign’s domestic action may not be questioned in the court of another sovereign
1) Here, court in US cannot judge the act (expropriation) of Soviet (ad, act of state doctrine)
2) (Adi) act of state doctrine has little to do with recognition of government / if state exist, act of state doctrine is applicable
3. (Argument that executive agreement is in violation of US constitution)
(1) while the U.S. Constitution stated that private property could not be taken without just compensation, the Constitution had no extraterritorial operation, unless in respect of U.S. citizen
- 1 , whether the executive agreement falls within presidential power over foreign affairs,
- president’s authority to act, (as with the exercise of any governmental power), must stem either from an act of Congress or from the Constitution itself (youngstown, Dames&Moore)
à. among the act of Congress and constitution itself, the executive agreement is from constitution, exclusive power of federal political branch over foreign affairs
- In Youngstown, the executive agreement in Belmont fit into 2nd category
****
, president activity like executive agreement or memo, if it is without from act of Congress, (A) mention (2) 1) and 2) à not require act of Congress, then, (B) go to Youngstown, whether 2rd or 3rd category
** **
How to get to the point where (not treaty) executive agreement prevail against NY policy
Youngstown
The President's authority to act, as with the exercise of any governmental power, "must stem either from an act of Congress or from the Constitution itself." (Youngstown) (dissenting : from congress, so 2nd category))
Justice Jackson's familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his [***60] authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Second, "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." In this circumstance, Presidential authority can derive support from "congressional inertia, indifference or quiescence." Finally, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb," and the [**223] Court can sustain his actions "only by disabling the Congress from acting upon the subject."
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 1936, (US S.Court), p208
Overview: A joint resolution of Congress authorized the President to declare the sale of arms to certain countries illegal. Though the President initially issued a proclamation that declared that sales to Bolivia were unlawful, the President later revoked his proclamation. Defendants allegedly sold arms to Bolivia before the revocation of the proclamation, and demurred to the charges against them on the ground that the revocation of the proclamation precluded their prosecution.
On appeal, the granting of defendants' demurrer was reversed and the case was remanded. The President had broad discretion to determine the benefit of enforcing a joint resolution on international relations. The power to make decisions regarding international affairs was vested in the President, especially in areas that could lead to embarrassment of or security issues for the nation. Defendants' argument that the power to declare certain arms sales illegal was invalidly delegated to the President was unjustified. The revocation of the proclamation did not change defendants' violation of the joint resolution; the revocation only stopped the joint resolution from being enforced against sales to Bolivia in the future.
Outcome: The judgment granting defendants' demurrer was reversed and the cause was remanded for further proceedings.
US v. Curtiss-Wright Export Corp., (US S.Court) p208
the scope of presidential power in foreign affairs, (not vis-à-vis state (like NY))
e.g., exam, whether the presidential activity e.g. treaty-making, executive agreement, executive order, memorandum, … in foreign affairs .. is within presidential power (authority) under constitution
power over foreign affairs is vested exclusively in political branch of federal government (Belmont, US S.Court, p204)
(Why?) external sovereignty of Great Britain passed to the United States immediately, as the result of their separation from Great Britain, and was not transmitted to the colonies severally / consequently, no federal sovereign power is dependent on an affirmative constitutional grant (Curtiss-Wright, S. Court, p208)
Doctrine that federal government can exercise only powers specifically enumerated or implied from such powers in constitution is true only in internal affairs (Curtiss, p208). (adiosme, federal government’s power over foreign affairs is not strictly restrained by specifically enumerated or implied powers)
The very delicate, plenary and exclusive power of the President as the sole organ (of the federal government) in foreign affairs is a power which does not require as a basis for its exercise an act of Congress, but which, like every other governmental power, must be exercised in subordination to US Constitution.
Given the better position to gain knowledge and confidential information on foreign country, more discretion and freedom is accorded to president in foreign affairs (adiosme à when the scope of delegation is at issue)
The very delicate, plenary and exclusive power of the President, as the sole organ of the federal government, in the field of international relations, is a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of Constitution.
If, in the maintenance of international relations, embarrassment - perhaps serious embarrassment - is to be avoided and success for national aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.
Whenever the President shall find that in any American country conditions of domestic violence exist which are promoted by the use of arms or munitions of war procured from the United States, and shall make proclamation thereof, it shall be unlawful to export except under such limitations and exceptions as the President shall prescribe any arms or munitions of war from any place in the United States to such country until otherwise ordered by the President or by Congress. Any shipment of material hereby declared unlawful after such a proclamation shall be punishable by fine not exceeding $ 10,000, or imprisonment not exceeding two years, or both.
The practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.
Notes and Qs 0213
Justice Sutherland was at pains to distinguish executive lawmaking in foreign affairs from that sort of executive lawmaking that the US S. Court had struck down
Dames & Moore v. Regan , 453 U.S. 654, (US S. Court), 1981, p215
- Petitioner company filed an action against defendants, the Iranian Government and banks, seeking money owed for services performed. The district court issued orders of attachment directed against the property of defendants. Petitioner was granted summary judgment.
- However, pursuant to an unrelated hostage (executive) agreement, American hostages in Iran were released. The U.S. President issued executive orders to implement the agreement. The orders nullified all non-Iranian interests in Iranian assets and suspended all settlement claims.
- Petitioner filed an action for declaratory relief against the government to prevent enforcement of the executive orders. The district court dismissed the complaint. Petitioner then sought a writ of certiorari.
- The S. Court affirmed, holding that the executive orders were sustained by the broad authority granted under the Trade With the Enemy Act. Thus, attachments obtained by petitioner were specifically made subordinate to further actions that the President might take under the International Emergency Economic Powers Act (IEEPA). Also, the President was authorized to suspend pending claims because Congress consented.
1. The President was authorized to nullify the attachments (and order the transfer) of Iranian assets by the provision of the IEEPA, which empowers the President to (“compel,”) “nullify,” (or “prohibit”) any “transfer” with respect to … any property subject to the jurisdiction of US, in which any foreign country has any interest.
(a) By the time petitioner brought the instant action, the President had already entered the freeze order, and petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The attachments obtained by petitioner, being subject to revocation, were specifically made subordinate to further actions which the President might take under the IEEPA..
(b) Blocking orders, such as the one here, permit the President to maintain foreign assets at his disposal for use in negotiating the resolution of a declared national emergency, and the frozen assets serve as a “bargaining chip” to be used by the President when dealing with a hostile country.
(c) Petitioner's interest in its attachments was conditional and revocable and as such the President's action nullifying the attachments and ordering the transfer of the assets did not effect a taking of property in violation of the Fifth Amendment absent just compensation.
(d) Because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, (adiosme * 1st category?) it is “supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” Youngstownr (Jackson, J., concurring). Under the circumstances of this case, petitioner has not sustained that burden.
2. On the basis of the inferences to be drawn from the character of the legislation, such as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order in question here. (ad, fitting into “foreign claim settlement cases”)
(a) Although neither the IEEPA nor the Hostage Act constitutes specific authorization for the President's suspension of the claims,
(c) That Congress has implicitly approved (acquiesced) the practice of foreign claims settlement by executive agreement. and the legislative history of the IEEPA further reveals that Congress has accepted the authority of the President to enter into settlement agreements.
(f) By enacting the Foreign Sovereign Immunities Act of 1976 (FSIA), Congress did not divest the President of the authority to settle claims.
(g) Long continued executive practice, known to and acquiesced in by Congress, raises a presumption that Congress consent to it.
(i) where, as here, the settlement of claims has been necessary to resolve major foreign policy dispute, and Congress has acquiesced (* ad 2nd category in Youngstown) in the President's action, the President does not lack the power to settle such claims.
3. The possibility that the President's actions with respect to the suspension of the claims may effect a taking of petitioner's property in violation of the Fifth Amendment in the absence of just compensation, makes ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims. And there is no jurisdictional obstacle to an appropriate action in that court under the Tucker Act.
** **
- e.g. in Dames case, (US S Court), president suspended all settlement claim by executive order implementing executive agreement to release Iran hostage, though Congress did not specifically authorize president to suspend the claims
- there are series of cases in which S. Court has upheld president’s authority to settle foreign claims pursuant executive agreement
- circumstances involved in the “foreign claims settlement cases” : (i) the making of executive agreement to settle civil claims b/w US citizen and foreign government or nationals, (ii) long continued executive practice, (iii) known to and acquiesced by Congress, (iv) raise presumption Congress consented to it (Medellin case)
- rationale : settlement of claim has been necessary to resolve foreign policy dispute (Dames)
- limitation : past practice does not, by itself, create power (Dames)
- in Yougnstown, fitting into 2nd category
- Here, …
** **
Medellin v. Texas, 552 US 491, S. court, 2008 Mar., p938, before p227
In the Avena Case ( Mex.v.U.S.), 2004, ICJ held that US had violated Article 36(1)(b) of the VCCR by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their VCCR rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state-court convictions and sentences, regardless of procedural default rule. (Mexico brought the Avena case in part in “the exercise of its right of diplomatic protection of its nationals,)
The President then issued a memorandum (President's Memorandum or Memorandum) stating that US would “discharge its international obligations” under Avena “by having State courts give effect to the decision.”
Relying on Avena (ICJ decision) and the President's Memorandum, Medellín filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence, on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals concluded that neither Avena nor the President's Memorandum was binding federal law that could displace the State's limitations on filing successive habeas applications.
Issue + Held : Neither Avena (ICJ decision) nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Pp. 1356 - 1372.
(Majority)
- Optional protocol “bare grant of jurisdiction”; UN charter art.94 “undertake to comply with”; ICJ statute art.59 only binding b/w parties; go to UN art.94, not optional protocol
(Dissenting)
- go to optional protocol; whether self-executing; compulsory jurisdiction -> enforceable -> self executing -> supremacy clause -> permeate to state TX
1. Whether self-executing
(1) Self-executing : when it operates of itself without the aid of (further) legislative act
(2) How to determine whether the treaty “operates of itself without the aid of (further) legislative act ?
1) (Maj, in Medellin) – textual approach
a. Treaty interpretation – text, and, as aids, drafting history and post-ratification understanding
b. (adiosme, Foster, Azukura, both of them textual approach? )
2) (dissenting, in Medellin) – multifactor approach, judgment-by-judgment approach
President Memo
Act of Congress or From Constitution
Act of Congress : (Maj, senate never consent to self-executing) (dissenting, congress neither authorized nor forbid ,)
From constitution : (Maj, constitution, making law v. executing law) (dissenting, constitutional authority in an area of foreign affairs )
In 1969, US ratified VCCR and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the VCCR
Art. 36(1)(b) provides that “the said authorities shall inform the person concerned without delay of his rights under this subparagraph”
Under the Protocol, such disputes "shall lie within the compulsory jurisdiction of the International Court of Justice" (subsequent to the ICJ's judgment in Avena, the United States gave notice of withdrawal from the Optional Protocol to the Vienna Convention)
Art. 94(1) of the U. N. Charter, "each Member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party."
US Con Art.6. Cl 2 supremacy clause
(Maj)
(ICJ judgment in Avena)
ICJ decision in Avena constitutes an international law obligation. Not all international law obligations automatically constitute binding federal law enforceable in US courts. The question here is whether the ICJ decision has automatic domestic legal effect enforceable in US courts. (whether self-executing, ** exam, first, whether within treaty-making power)
Test of Self-executing is whether it “operates of itself without the aid of any legislative provision”, if not self-executing, can only be enforced pursuant to legislation
(Even when self-executing, it does not create private cause of action. (adiosme, even assuming self-executing, Medellin can’t bring a suit under the treaty) Here, issue is ICJ decision, not VCCR. Thus, it is unnecessary to resolve whether VCCR is itself self-executing or granting individually enforceable rights.)
The interpretation of a treaty begins with its text. We also considered, as “aids to its interpretation”, the negotiation and drafting history of the treaty as well as “the post-ratification understanding” of signatory nations. (adiosme : Maj – i) textual approach, ii) when president and senate discuss the drafting, there was hardly provision about self-executing, iii) post-ratification not a single nation make it self-executing)
Of course, submitting to jurisdiction and agreeing to be bound are two different things.
Optional Protocol is as a bare grant of jurisdiction. The Protocol says nothing about the effect of an ICJ decision, or any enforcement mechanism. (adiosme one of textual approach)
The obligation to comply with ICJ judgments derives from Art. 94 of the UN Charter “UN member states undertakes to comply with ICJ decision.” The phrase “undertakes to comply”, instead of must or shall comply, is not “immediate legal effect,” but rather “a commitment take future action through their political branches”
ICJ enforcement structure such as referral to UN S.C. under UN Charter 94(2) does not contemplate self-executing of ICJ decision.
If ICJ decision is self-executing, it undermines the ability of political branch to determine whether and how to comply with IC decision.
Non-self-executing of ICJ decision is also evidenced by ICJ statute. Art. 34(1) ICJ can hear disputes only between nations, not individuals. Art. 59 ICJ decision has no binding force except between the parties. Medellín, an individual, cannot be a party to the ICJ proceeding
(The dissent concludes that the ICJ judgment is binding federal law based on its belief that VCCR overrides contrary state procedural rules. But S. Court decision in Sanchez-Llamas, held that the Convention does not preclude the application of state procedural bars. There is no basis for relitigating the issue.)
(still as to whether self-executing),
(Maj) Textual approach – the presence of language in a treaty about a provision’s self-execution
(Dissenting) – multifactor, judgment-by-judgment analysis
Dissent’s approach has problems: indeterminate, writing a blank check to judiciary, the court (not political branch) will decide when and how int’l agreement will be enforced
“post-ratification understanding” of signatory nations. Not a single nation treats ICJ judgments as binding in domestic courts
whether the treaties underlying a judgment are self-executing so that the judgment is [directly enforceable as domestic law in our courts]=(self-executing) is, of course, a matter for this Court to decide
The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to “roughly similar” provisions. Some of them are self-executing, others are not. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.”
That an ICJ judgment may not be automatically enforceable in domestic courts does not mean the particular underlying treaty is not. Indeed, we have held that a number of FCN Treaties are self-executing-based on “the language of the Treaties (adiosme Of course, submitting to jurisdiction and agreeing to be bound are two different things)
In sum, while the ICJ's judgment in Avena creates an international law obligation on the part of the US, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions..
President Memorandum
The dissent states that, in the exercise of his Article II powers pursuant to a ratified treaty, the President can take action that would result in setting aside state law.” We agree. The questions here, however, are (i) whether he may unilaterally create federal law by giving effect to the judgment of this international tribunal pursuant to this non-self-executing treaty, and, if not, (ii) whether he may rely on other authority under the Constitution to support the action taken in this particular case.
(adiosme, (i) optional protocol is non-self-executing, can president create unilaterally (without aid of legislature) federal law (which preempt state law) by giving effect to the ICJ decision based upon the non-self-executing treaty, (ii) any other authority under Con to support the action of creating federal law)
The President's authority to act, (as with the exercise of any governmental power,) “must stem either from an act of Congress or from the Constitution itself.” Youngstown, ; Dames & Moore v. Regan,
three categories of Youngstown framework Justice Jackson's tripartite scheme in Youngstown provides the accepted framework for evaluating executive action in this area. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, (Jackson, J., concurring). Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” In this circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.” Id., at 637-638, 72 S.Ct. 863.
The US maintains that, the relevant treaties create an obligation to comply with Avena, they “implicitly give the President authority to implement that treaty-based obligation.” As a result, the President's Memorandum is well grounded in the first category of the Youngstown framework
We disagree. Unilaterally converting a non-self-executing treaty into a self-executing one is not among president’s authority to enforce international obligation. Transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Foster; “not self-executing can only be enforced pursuant to legislation.” Whitney,
(For a treaty to have domestic effect of its own force (or enforceable in US court), either self-executing or implemented by Congress. ; Cf. “act of Congress” or “from constitution itself” )
If a treaty to be self-executing, the executive ensure the treaty contains language providing for domestic enforceability in “making” the treaty, and senate consent to it.
If not self-executing, by the principle that congress make law and president execute it, a treaty has domestic effect thru implemented by Congress.
(In which category in Youngstown framework, President memo falls within)
Non-self-executing, by definition, precludes the assertion that Congress implicitly authorized the president to give treaty domestic effect of its own force (not 1st category) And also implicitly prohibits president from doing so because doing so is in conflict with understanding of Senate (so, 3rd category)
(memorandum violate constitutional scheme regarding making law, premise is that protocol is non self-executing)
Constitution requires joint action by executive and legislative for making law, i.e. here, giving domestic effect to treaty. If self-executing, treaty made by executive and consented to by senate. If non self-executing, implemented by legislative and approved by president. à president cannot unilaterally give domestic effect to non self-executing treaty
Whether or not Congressional acquiescence is not pertinent here, because the issue is pertinent only in second category, and here, the president action falls within third category
(ICJ decision in Nicaragua case, president determined that US does not comply with ICJ decision –here jurisdiction based upon ICJ 36(2))
President’s role in foreign policy speaks to president’s international responsibility, not to unilateral authority to create domestic law.
Issue : whether the memorandum is a valid exercise of the president’s foreign affairs authority to settle foreign claims pursuant to an executive agreement.
- Nature of the argument : rather than relying on treaty obligation, relying on independent source of president’s authority
- There are series of cases in which S. Court has upheld the president’s foreign affairs authority to settle foreign claims pursuant to executive agreement e.g. Dames & Moore,
- Circumstances involved in the “foreign claims settlement cases” : (i) the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. Belmont, (ii) (a systematic, unbroken,) executive practice,, long pursued to the knowledge of the Congress and never before questioned,, raise a presumption Congress consented to it.” Dames & Moore,
- Limitation on the source of authority : “past practice does not, by itself, create power.” Dames & Moore
- Here, not fit into the circumstances, not longstanding, no presidential directives so far which compel state court to reopen final criminal judgment and set aside state laws
(Dissenting)
Supremacy Clause (Art.6,cl.2.) means that the “courts” must regard “a treaty ... as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Foster v. Neilson,
The question here is whether the ICJ decision in Avena “operates of itself without the aid” of any further legislation.
The basis on which IJC decision binds the courts no less than would act of federal legislature
- Optional Protocol Concerning the Compulsory Settlement of Disputes : a treaty obliging US to (am, internally) comply with ICJ judgments once US has given its consent to ICJ jurisdiction. ßà. (Majority, justice Roberts, Of course, submitting to jurisdiction and agreeing to be bound (am, internally) are two different things.)
- Art.59 of UN Charter, “ICJ's judgments would have binding force ... between the parties and in respect of [a] particular case.” (Maj, art.94)
- President Bush has determined that domestic courts should enforce this particular ICJ judgment.
- Congress has done nothing to suggest the contrary. (Maj, Congress implicitly prohibit)
Relevant three treaties ratified by US
- VCCR, first, requires signatories (US) to inform arrested foreign nationals of their right to contact consul, second, these rights (of an arrested person) “shall be exercised in conformity with the laws and regulations” of the arresting nation, provided that the “laws and regulations ... enable full effect to be given to the purposes for which” those “rights ... are in-tended.”
- the Optional Protocol, concerns the “compulsory settlement” of VCCR, “compulsory jurisdiction of the ICJ.”
- UN Charter, 94(1) “undertakes to comply with the decision of ICJ”, ICJ statute Art.59 “binding force ... between the parties”.
The words “undertake to comply,” under art.94of UN charter do not tell us whether an ICJ judgment is self-executing. We must look instead to the many treaty-related cases interpreting the Supremacy Clause..
Maj’s textual approach i.e. looking for language about self-executing is misguided. Many self-executing treaties contain no textual language. Treaty drafters are aware of national difference. They leave national legal practice (implementation) alone.
In a word, the absence or presence of language in a treaty about a provision's self-execution proves nothing at all
Factors
- Drafting history
- Provision’s subject matter: address itself to political or judicial
- Whether treaty provision confers specific, detailed individual legal rights
ICJ decision in Avena is self-executing
- First, the language of the relevant treaties, The Optional Protocol bears the title “Compulsory Settlement of Disputes,” thereby emphasizing the mandatory and binding nature of the procedures. Thus, the Optional Protocol's basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement.
- ICJ statute art.59, has “binding force ... between the parties and in respect of that particular case.”
- US has ratified about 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the Optional Protocol. Was US engaging in a near useless act?
- Second, the Optional Protocol here applies to a dispute about the meaning of a VCCR provision that is itself self-executing and judicially enforceable. The VCCR provision is about an individual's “rights,”
- Fourth, US has entered into about 70 treaties that contain provisions for ICJ dispute settlement similar to the Protocol. The consequence is to undermine longstanding efforts in those treaties to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provisions.
- Fifth, the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific (adiosme, factor, specific, detailed)
- Sixth, to find the treaty obligations self-executing does not threaten constitutional conflict with other branches; it does not require us to engage in non-judicial activity; and it does not require us to create a new cause of action.
- Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment.
Memorandum
- President’s memorandum draw upon his constitutional authority in the area of foreign affairs. The power falls within second category of Youngstown : where Congress has neither specifically authorized nor specifically forbidden the Presidential action in question.
- The majority's two holdings taken together, worsen relations with our neighbor Mexico, precipitate actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad,
In sum, the treaty provisions before us (optional protocol) and the judgment of the ICJ address themselves to the Judicial Branch and consequently are self-executing
l **
Respublica v. De Longchamps, 1 U.S. 111, court of Oyer at Philadelphia, 1784, (p227)
P, D, suit
- Ordinary criminal case except that ‘As to jurisdiction of the courts in case of the commission of an assault, by French national, against the secretary of French legation’ (Respublica look like the state of PA state or a party in criminal case)
Procedural Posture
- An indictment charged defendant with unlawfully and violently threatening and menacing bodily harm and violence to the person of the Secretary of the French Legation and also with the commission of an assault and battery.
Overview
- Defendant pleaded not guilty to the indictment, but a jury found him guilty on both counts following a trial.
- the court found that defendant committed slander (insult), and assault and battery.
- Whether you could be legally delivered by council, according to the claim made by the late Minister of France ?
àthe court concluded that i) defendant could not be legally delivered by the Supreme Executive Council to the Minister of France and
- If not delivered, whether your offences in violation of the law of nations, being now ascertained and verified according to the laws of this Commonwealth, you should not be imprisoned, until French king declares the reparation to be satisfactory ?
à ii) could not be imprisoned until his most Christian Majesty declared the reparation to be satisfactory ;
- because the person of a public minister was sacred and inviolable, defendant had committed a violation of the law of nations when he threatened and menaced bodily harm and violence to the person of the Secretary of the French Legation.
Outcome
- A jury found defendant guilty on both counts of the indictment, and the court pronounced a sentence of a fine and imprisonment.
(US does not have sovereign jurisdiction over embassy in Iran. The embassy in Iran is in Iranian territory. But, under the convention it remains Iranian territory, but Iran chose not to exercise jurisdiction within the embassy.)
Headnote
- <jurisdiction> Punishments must be inflicted in the same county where criminals are tried and convicted, unless the record of the attainder be removed into the Supreme Court of Pennsylvania, which may award execution in the county where it fits;
- <punishable based upon what?> Unlawfully and violently threatening and menacing bodily harm and violence to the person of the Secretary of the French Legation is an infraction of the law of nations. This law is part of the law of the State of Pennsylvania
- <why the violation of the law of the nations?> The person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the sovereign he represents, but also hurts the common safety and well being of nations; he is guilty of a crime against the whole world. ?? is it the violation of customary int’l law? Or general principle
There is a clear violation of int’l law when bombing the ship,
Looked at the treaty, Geneve convention on high seas (which is US and __ signatory to ), federal cases, literatures,
P234, last para, “in short, … “ interesting , north continental shelf case
Notes , Chaming bets rule of construction came out it,
Argentine Republic v. Amerada Hess Shipping Corp., (US S. Court), 488 U.S. 428, 1989, (p232)
suit against sovereignty under ATS ** test i) FSIA is the sole basis for jurisdiction over action against foreign sovereignty ii) applicability of exceptions in FSIA
Background
1. During the war between Great Britain and petitioner Argentine Republic over the Falkland Islands (Malvinas) off the Argentine coast
2. Respondent Liberian corporations brought a tort action in US federal district court under i) ATS 28 USC 1350 ii) general admiralty and maritime jurisdiction of federal courts 28 USC 1333 iii) the principle of universal jurisdiction recognized in customary int’l law against the foreign nation, Argentina because their oil tanker was bombed by Argentina's military in violation of int’l law despite being a non-combatant and despite being outside of the "war zone" on high seas.
(1) am, here, private cause of action is not an issue
3. The Supreme Court held that:
(1) Foreign Sovereign Immunities Act provides sole basis for obtaining jurisdiction over action against foreign state, and
(2) No exception to foreign sovereign immunity applied to give the district court jurisdiction over the Argentine Republic
Issue
1. Whether FSIA provides sole basis for obtaining jurisdiction over action against foreign state, esp. with regard to i) ATS and ii) ‘general admiralty and maritime jurisdiction of federal courts’ 28 USC 1333
2. Whether any of exceptions in FSIA apply here
Reasoning
1. FSIA and ATS : whether FSIA precludes remedies for violations of int’l law by foreign states under ATS 28 USC 1350 (ade whether ATS operated, irrespective of FSIA)
(1) (2nd Cir.)
1) US federal district court has jurisdiction under ATS because of alleging i) tort (the bombing of a ship without justification) and ii) violation of int’l law (attacking a neutral ship in int’l water without proper cause for suspicion or investigation)
(àade FSIA and ATS is not overlapping, ATS operated independently of FSIA coz FSIA concerns commercial sector)
2) FSIA does not eliminate existing remedies for violation of int’l law by foreign states under ATS
a. FSIA focuses on commercial concerns (ad, ATS deals with public int’l law?)
a) S.Court : Congress had violation of int’l law by foreign states in mind when enacting FSIA e.g. s.1605(a)(3)
b. Failure to repeal ATS indicates district court exercises jurisdiction under ATS even outside FSIA (ad, ATS prevails over FSIA)
a) S.Court : when enacting FSIA, it was unclear whether ATS confers jurisdiction in suit against foreign states
b) : The rule of statutory construction under which repeals by implication are disfavored
c. FSIA should be interpreted pursuant to int’l law (ad, if violation of int’l law, it should be adjudicated despite FSIA)
(2) S. Court started from the proposition that the subject matter jurisdiction of the lower federal courts is determined by Congress
(3) FSIA
1) 28 USCA 1330(a) actions against foreign states : the district court have original jurisdiction … either under s.1605-1607 or under applicable int’l agreement à s.1330(a) confers jurisdiction
2) 26 USCA 1602 Findings and declaration of purpose : Claims of foreign states to immunity should henceforth be decided … in conformity with the principles set forth in this chapter à Congress’ decision to deal comprehensively with the subject of foreign sovereign immunity in the FSIA
3) 28 USCA 1604 immunity of foreign state from jurisdiction : foreign state is immune from jurisdiction of US court except 1605-1607 à s.1604 bars jurisdiction
4) (FN1 : FSIA codifies so-called “restrictive” theory of foreign sovereign immunity)
5) Thus, Congress’ intention is that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts
2. FSIA and general admiralty and maritime jurisdiction of federal courts’ 28 USC 1333
(1) Respondent argued that ‘general admiralty and maritime jurisdiction of federal courts’ 28 USC 1333 provides basis for jurisdiction
(2) Congress deal with the admiralty jurisdiction of federal court when enacting FSIA : 1605(b)
(3) Thus, Congress’ intention is that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts
3. exceptions in FSIA
(1) the waiver of immunity, § 1605(a)(1), / commercial activities occurring in the United States or causing a direct effect in this country, § 1605(a)(2), / property expropriated in violation of international law, § 1605(a)(3), / inherited, gift, or immovable property located in the United States, § 1605(a)(4), / non-commercial torts occurring in the United States, § 1605(a)(5), / and maritime liens, § 1605(b)
(2) here, none of the FSIA’s exceptions applies
4. 28 USC 1605(a)(5) non-commercial torts occurring in US
(1) Purpose of 1605(a)(5) : to eliminate foreign sovereign immunity for traffic accident in US
(2) The definition of “US” in 1603(c) : only within territorial jurisdiction of US. Here, outside of the territorial waters of US
(3) Given s.1605(a)(2) which explicitly provides “outside the territory of US”, 1605(a)(5) which does not have the expression covers only torts occurring in US
5. 28 USC 1604 : “subject to existing international agreements to which US was a party …”
(1) Respondent argues that certain int’l agreements by US and Argentina create exception to FSIA
(2) The “international agreement” under 28 USC 1604 should ‘expressly’ conflict with the immunity of FSIA
(3) Geneva Convention on the High Seas, and the Pan American Maritime Neutrality Convention, however, only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs. They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts
6. 28 USC 1605(a)(1) waiver of immunity
(1) the Treaty of Friendship, Commerce and Navigation, United States-Liberia, provides that the nationals of the United States and Liberia “shall enjoy freedom of access to the courts of justice of the other on conforming to the local laws.” The FSIA is one of the “local laws” to which respondents must “conform” before bringing suit in United States courts
Alien Tort Statute 28 USC § 1350 Alien’s action for tort
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
28 U.S.C.A. § 1604 Immunity of a foreign state from jurisdiction
“Subject to existing international agreements to which the United States is a party at the time of enactment of this Act” a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.
28 U.S.C.A. § 1605 General exceptions to the jurisdictional immunity of a foreign state
§ 1605(a)(1), commercial activities occurring in the United States or causing a direct effect in this country, § 1605(a)(2), property expropriated in violation of international law, § 1605(a)(3), inherited, gift, or immovable property located in the United States, § 1605(a)(4), non-commercial torts occurring in the United States, § 1605(a)(5), and maritime liens, § 1605(b)
28 U.S.C.A. § 1330 Actions against foreign states
(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.
p232, Amerada case, suit against sovereignty under ATS or others
l Whether US (federal) court has jurisdiction over a suit against foreign sovereign esp. under ATS (see Amerada case)
1. (2nd Cir.) ruled in the affirmative, stating that, i) FSIA focuses on commercial concerns, ii) failure to repeal ATS indicates jurisdiction under ATS even outside FSIA,
2. S. Court countered that i) FSIA concerned violation of int’l law e.g. s.1605.a.3, ii) when enacting FSIA, it was unclear whether ATS confers jurisdiction against foreign state, statutory construction disfavored repeal
3. S. Court stated that, the subject matter jurisdiction of the lower federal courts is determined by Congress, and, FSIA provides sole basis for obtaining jurisdiction over action against foreign state,
(1) 28 USCA 1330(a) actions against foreign states : confers jurisdiction
(2) 26 USCA 1602 Findings and declaration of purpose : congress intent to comprehensively deal with foreign sovereign immunity in the FSIA
(3) 28 USCA 1604 immunity of foreign state from jurisdiction : bars jurisdiction
(4) Thus, Congress’ intention is that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts
4. Exceptions in FSIA (s.1605)
Murray v. Charming Betsy, The, US S. Court, 1804, p235
Another role of law of nations in US municipal law
- (in Amerada Hess v. Argentine, law of nations under ATS confers jurisdiction)
- US municipal law (act of Congress) and law of nations, try to construe US municipal law on conforming to law of nations
Charming Betsy Rule (way of interpreting US municipal law)
An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country
U.S. v. Alvarez-Machain, 504 U.S. 655, (US S. Court), 1992, (p236) .
Facts
1. Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot.
2. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the US and Mexico (Extradition Treaty), and ordered respondent's repatriation.
3. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican Government had protested the Treaty violation, jurisdiction was improper.
Held:
1. The fact of respondent's forcible abduction does not prohibit his trial in a US court for violations of this country's criminal laws. Pp. 2191-2197.
2. A defendant may not be prosecuted in violation of the terms of an extradition treaty. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was proper. Pp. 2191-2193.
3. Neither the Treaty's language nor the history of negotiations and practice under it prohibits abductions outside of its terms. ((The Treaty says nothing about either country refraining from forcibly abducting people from the other's territory or the consequences if an abduction occurs. In addition, although the Mexican Government was made aware of the Ker doctrine as early as 1906, and language to curtail Ker was drafted as early as 1935, the Treaty's current version contains no such clause. Pp. 2193-2195)).
4. General principles of international law does not prohibit international abductions.
5. respondent's argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself.
6. It was the ** practice of nations with regard to extradition treaties that formed the basis for this Court's decision in Rauscher, supra, to imply a term in the extradition treaty between the United States and England.
7. the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch. Pp. 2195-2197.
Dissenting
1. majority is ridiculous
2. private actor v. state
** p236
l Whether forcible abduction defeat jurisdiction over the defendant
1. US S.Court in Alvarez-Machain case re-affirmed so-called Ker-Frisbie doctrine that defendant may not assert the illegality of his arrest and detention to defeat jurisdiction over him
(1) Neither the (extradition) Treaty's language nor the history of negotiations and practice under it prohibits abductions outside of its terms, and
(2) general principles of international law provided no basis for interpreting Treaty to include implied term prohibiting international abductions, and
(à. am, general principle – fill in gap, e.g. necessary include legal confidential ?)
(3) therefore, district court had jurisdiction to try Mexican national who had been forcibly kidnapped and brought to US
2. (dissenting) noted the difference from prior cases: it does not involve an ordinary abduction by a private kidnaper, as in Ker ; nor does it involve the apprehension of an American fugitive who committed a crime in one State and sought asylum in another, as in Frisbie ; Rather, it involves this country's abduction of another country's citizen; it also involves a violation of the territorial integrity of that other country, with which this country has signed an extradition treaty
1) Thus, the Extradition Treaty suffices to protect the defendant from prosecution despite the absence of any express language in the Treaty itself
3. my suggestion is that the doctrine should be overruled coz terrorist state can forcibly abduct US official and try him
Sosa v. Alvarez-Machain, 542 U.S. 692, (S.court), 2004, p245
Background:
1. Plaintiff, a Mexican national (Alvarez-Machain) [acquitted of, complicity in the murder of a federal agent in Mexico, after being abducted in Mexico and transported to El Paso(TX, US) , and to 9th Cir.] , brought action [against Mexican collaborator with federal agents, under Alien Tort Statute (ATS) for violation of the international law of nations] and [ against US, Drug Enforcement Agency (DEA) under Federal Tort Claims Act (FTCA) for false arrest]
The US Supreme Court held that
1. neither the FTCA nor the ATS provided a remedy for the alien
2. The judgments upholding the availability of remedies for the alien under the FTCA and the ATS were reversed.
- (1) whatever liability (US allegedly had) for alien's arrest, so that he could be transported across the border and lawfully arrested by federal officers, rested on events that occurred in Mexico, so as to fall within the “foreign country” exception to waiver of government's immunity under the FTCA;
à adioseme : separate from Mexico to El Paso (illegal) and from El Paso to 9th Cir. (lawful) à is it legitimate? Cf, ‘The fruits of the poisonous tree’ doctrine, but US stick to the rule of Ker ,
- (2) “foreign country” exception to waiver of government's immunity bars all claims against government based on any injury suffered in foreign country, regardless of where the tortious (tort) act or omission giving rise to that injury occurred; and (à where the cause of injury occurred does not matter)
- (3) single illegal detention, of less than one day, of Mexican national, custody of whom was then transferred to lawful authorities in US for prompt arraignment, violated no norm of customary international law under the ATS
Reasoning
Against US
- The FTCA’s exception seems applicable here. Though Alvarez's arrest was “false,” and thus tortuous, it took place and endured in Mexico (i.e. “foreign country”)
- the 9th Cir., by adopting the “headquarters doctrine,” concluded that, because Alvarez's abduction (i.e. personal injury) was the direct result of wrongful planning and direction by DEA agents in California, his claim did not “arise in” a foreign country
- two consideration to reject the “headquarter doctrine”
ài) proximate cause between domestic (US) breach of duty and the action in the foreign country, is not itself sufficient to bar the foreign country exception (i.e. to waive sovereign immunity), since the proximate cause may not be the harm's exclusive proximate cause (i.e. there might be other cause than planning by US agency), like, here, actions of Sosa and others in Mexico
àii) plain meaning of “arising in” a foreign country, for injury or harm occurring in that country,
àiii) what Congress intended by the foreign country exception was to avoid application of foreign substantive law. With the headquarters doctrine, will thwart the intent of the Congress
Against Mexican collaborators
(a)
- the ATS is a jurisdictional statute (optional protocol ‘bare grant of jurisdiction’ in Medellin), creating no new causes of action.
- the common law would provide a cause of action for the modest number of international law violations e.g. offenses against ambassadors, and piracy.
(b)
- need to limit such a new cause of action.
- federal courts should not recognize claims [under federal common law for violations of any international law norm] with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when § 1350 was enacted.
(à the seriousness of violation of int’l law as a new cause of action should be as definite (much) as in the 18th Century à one day of illegal detention of Alvarez is much less definite than offense against ambassador) (am, in Filartiga, customary law is part of federal common law, thus, create cause of action)
- arguments for limiting new cause of action
à First, prevailing conception of the common law has changed: from ‘the common law was found or discovered’ to ‘now, as made or created’, Third, decision to create a private right of action is better left to legislative judgment, Fourth, potential implication, for foreign relations, of recognizing new cause of action for violating int’l law, leaves it to executive or legislative
- Alvarez contends that prohibition of arbitrary arrest has attained the status of binding customary international law (under ATS - ad) He cited nothing. Further, It would create a cause of action for any seizure of an alien in violation of the Fourth Amendment. The contention expresses aspiration which exceeds any binding customary rule
(adi, regarding “he cited nothing”, in the Paquete Habana, rule of international law is one which prize courts are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own gov-ernment in relation to the matter.)
the Federal Tort Claims Act (FTCA), which waives sovereign immunity in suit 28 U.S.C.A. § 1346,
here, 28 U.S.C.A. § 1346(b)(1)
(b)(1) “… the district courts … , shall have exclusive jurisdiction of civil actions, on claims, against the United States, for money damages, … , for [injury or loss of property, or personal injury or death] caused by [the negligent or wrongful act or omission of any employee of the Government] while acting within the scope of his office or employment, under circumstances where US, … , would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The FTCA's exception to waiver of sovereign immunity for claims “arising in a foreign country,” 28 U.S.C. § 2680(k),
(k) Any claim arising in a foreign country. (ß foreign country exception)
Just FYI
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or…
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war
Scope of violation of laws of nations, p17
